Judge Orders Defendants to Cease Delay Tactics in Buzayan Case

It was summer of 2005 when then 16 year-old Halema Buzayan was arrested by Davis Police Officer Pheng Ly. Much has happened since that time both within the city and the police department. But one thing that has not happened is that the Federal Lawsuit filed by Ms. Buzayan's family has not gone to trial. That may finally change shortly as a Federal Judge last week ordered the defense to quit stalling and allow the case to move forward.

Halema Buzayan and her family allege 16 causes of action against the Davis Police Department, individual police officers, the Yolo County District Attorney and several individual's from the DA's Office, and the City of Davis. Specifically the list of defendants include: City of Davis, former Davis Police Chief James Hyde, Assistant Police Chief Steven Pierce, Officer Pheng Ly and Ben Hartz, Former DA David Henderson, Deputy DA Patricia Fong, and Counsel for Yolo County and the City of Davis Douglas Thorn who is himself a defendant in this case.

The defendants have submitted a series of motions to dismiss, but to this point the only original defendant whose case was dismissed was the Davis Enterprise, dismissed in July of 2007.

US District Judge Morrison England describes the current motion to dismiss as being submitted "in an unusual manner."

He writes:

"Although the Court concludes that the majority of the Second Motion to Dismiss is duplicative and unnecessary, and while Plaintiffs have strong arguments that the Motion to Dismiss is untimely in the first place, the Court will nonetheless exercise its discretion to hear Defendants’ pleading challenge one final time because resolution of Defendants most recent contentions may help clarify the remaining issues in the present action."

Judge England proceeds to deny all but a very small portion of the defendant's motion to dismiss.

"Based on the foregoing analysis, Defendants’ Motion to Strike (Docket No. 156) is DENIED. Defendants’ Motion to Dismiss (Docket No. 138) is also DENIED, except that the Court clarifies, with respect to Plaintiffs’ Fourteenth Cause of Action that any reliance on false light invasion of privacy is precluded. Defendants’ Second Motion to Dismiss is accordingly GRANTED in that regard. Pursuant to Rule 12(f)(1), the Court orders the second sentence of paragraph 190, and the first sentence in paragraph 192, in Plaintiffs’ Second Amended Complaint stricken. All other causes of action shall proceed in a manner consistent with this Order."

While the judge struck those two paragraphs, he left the bulk of the fourteenth cause of action in place.

"However, the Fourteenth Cause of Action remains viable to the extent Plaintiffs rely on alleged disclosure and broadcast of private information."

The Fourteenth cause of action is a complaint regarding a violation of the California Constitutional Right to Privacy. The bulk of that complaint claims a deliberate disclosure and broadcast of private information.

"Defendants' conduct has resulted in Halema Buzayan and her family being placed in a false light in the public and within the community. Defendants have violated Plaintiffs' right to privacy as secured under the California Constitution. Plaintiffs assert claims for violation of their right to privacy as secured under the California Constitution against all involved Defendants."

Judge England then concludes his opinion with the following:

"Additionally, while the Court concludes that entertaining Defendants’ Second Motion to Dismiss had some limited utility in narrowing the arguments, many of the other arguments raised were either cumulative, premature, inadequately developed, and/or unsubstantiated. Defendants are directed to refrain from any further efforts to frustrate the timely resolution of this litigation."

In other words, Judge England is telling the defendants to quit trying to stall this case. It is time to move forward.

He roundly criticizes their arguments as being premature, inadequately developed, and/ or unsubstantiated. He questioned the need for this second motion to strike. And although he limited the 14th complaint somewhat, for the most part virtually summarily dismissed it.

At this point in time, it is time to move forward with the case, and let the Buzayan Family after three and a half years finally have their day in court. Then the court can determine if they were wronged and what the damages were.

---David M. Greenwald reporting

Attorneys For Brenda Cedarblade File Letter of Complaint with District Attorney, Yolo County Sheriff, and Woodland Chief of Police

Complaint Alleges "Non-Responsiveness" to Series of Violent Threats, Acts of Violence and an Overall Pattern of Harassment

On December 17, 2008, attorney Matt Gonzalez from the San Francisco based law firm of Gonzalez and Leigh, fired off a complaint addressed to Yolo County District Attorney Jeff Reisig, Sheriff Ed Prieto, and Woodland Police Chief Carey Sullivan.

The complaint "expresses concern" with:

"the Yolo County Sheriff Department's and the Woodland Police Department's seeming non-responsiveness to a series of violent threats, acts of violence, burglaries, criminal trespasses, and an overall pattern of harassment (some of which are described below) directed at my clients, and all of which were reported to both the Yolo Sheriff's Department and the Woodland Police Department."

The letter lays out four instances including shots fired onto property on May 25, 2008, multiple incidents of burglary and criminal trespass dating to April and May of 2008, threats, and the publication of private and confidential information on a web site.

Mr. Gonzalez writes:

On May 25, 2008 my clients reported three shots fired from a field North of their property at 41070 County Road 18C, Woodland, 95695. The shots were fired from a high powered rifle onto their property while Ted Wilson and several of his employees were working. Two of the bullets sailed over Mr. Wilson's head and hit the roof of the horse arena on my clients' property. After hearing the shots fired and the bullets land, Mr. Wilson located a white pick-up truck and four men in a field northwest of his property. Ms. Cedarblade immediately called the Yolo County Sheriff's Department for assistance.

Upon arriving, the Deputy Sheriff confronted four men in the same white pick-up truck located by Mr. Wilson. As relayed to my clients' from the deputy, the men possessed a high-powered long-range rifle, methamphetamine, and were all residing illegally in the United States. The men told the deputy they were using the gun to "shoot squirrels".

According to the complaint, the shooting constitutes several crimes including "assault with deadly weapon" and "discharge of firearm at occupied building."

However, authorities did not follow up on these complaints and made no arrest.

"Following the shooting Mr. Wilson and Ms. Cedarblade unequivocally told the deputy they wished to press all charges against the shooters. However, Mr. Wilson and Ms. Cedarblade understand that the Sheriff's Department made no arrest of the shooters, and conducted no further investigation..."

Mr. Gonzalez writes:

"Given the shooters' purported explanation, and the clear commission of several crimes, the failure to investigate or file charges raises serious questions about the Yolo County Sheriff Department's policies and procedures for investigating crimes, and their apparent disregard of serious violent conduct directed at my clients."

The next incident allegedly occurred in April of 2008.

"Ms. Cedarblade and Mr. Wilson arrived at home to find that unknown persons had entered their home, as well as the historic ranch on their property. The trespassers left green cards, $2000 in cash, drugs and drug paraphernalia. Ms. Cedarblade also discovered old family photos of her family scattered around her bedroom, as well as childhood drawings and report cards, all things that were not previously in her possession. They also found rat poison spread over their bed and kitchen counter. After notifying the Sheriff's Department, the deputy declined to conduct any investigation or collect any evidence, and told my clients to keep the green cards and the $2000 cash.

On May 22, 2208, my clients discovered photos and documents related to the former occupation of Ms. Cedarblade's father, a former navy defense contractor who worked on classified missile systems, inside their home. The photos and documents - which mayor may not be classified - were not previously in the possession of my clients, and appeared to be part of the personnel file of Ms. Cedarblade's father, including his security clearance."

According to Mr. Gonzalez, though this burglary was reported, no investigation was conducted by law enforcement.

The third incident involved a threatening phone call claiming that there was a hit out for Ms. Cedarblade who then reported this to the Sheriff's department.

"The Deputy told Ms. Cedarblade that a "hit" could mean a hit on a government records search, and did no further investigation - this despite providing the deputy with the name of the caller."

Furthermore private information was allegedly posted on a web site, however, there was never any investigation into this matter by the Woodland Police or the Sheriff's department.

Mr. Gonzalez concludes:

"My clients turned over all information concerning the above incidents, as well as other instances of harassment, to both the Yolo County Sheriff's Department and the Woodland Police Department. But, to their knowledge, neither Department conducted any serious investigation into any of the above incidents, or any other of the reported incidents, despite clear evidence of criminal activity. In fact, my clients expressly requested a criminal investigation to the Sheriff's Department and were told, through their previous attorney, that the District Attorney's office was too busy to do any investigation."

The Vanguard will be following up on this story in the coming days and will report upon any further development.

---David M. Greenwald reporting

Did Davis Biotech Firm Expose Davis to Potentially Dangerous Pathogens?

Sandi Trend will be speaking about her son’s case at a screening of The World According to Monsanto, Saturday, October 18, 2 p.m., UC Davis, Chemistry Room 194.

This week's Sacramento News and Review featured a story by Seth Sandronsky which outlined the plight of former Sacramento resident David Bell, who worked for a Davis biotech firm, AgraQuest.

According to the News and Review article:

"Five months later, he came down with severe flu symptoms. His face and teeth grew numb. Breathing became difficult and he developed severe headaches. His nose bled and his sputum turned bloody.

Ten years, four sinus surgeries and numerous medical treatments later, Bell remains incapacitated by the illness, which he and his mother, Sandi Trend, of Citrus Heights, claim was caused by bacteria and fungi he was exposed to at AgraQuest."

The Vanguard has been investigating this story for the last several months and is very concerned about the possibility that some of the microbes and bacteria that were used in this lab could have escaped into the Davis environment and exposed Davis residents to potentially lethal infections. One of the problems that David Bell faced was a broken Worker's Compensation system. The main focus of the News and Review Article was the plight of David Bell and the problems in the Worker's comp system.

Our concern however is also with the residents who live and work near 1105 Kennedy Place, in Davis, the original location of Agraquest. It is located near two school sites and surrounded by residential neighborhoods.


At this point in time, we would like a regulatory agency to explore the area around the lab and determine whether there are possible pathogens that would represent a health risk. One of the challenges we face however is uncertainty as to who holds regulatory authority over this issue. Efforts at this time are underway to determine who holds regulatory authority and how the possibility of a health threat can be investigated.

WHAT THE LAB CONTAINED AND THE OFFICIAL RESPONSE OF CAL-OSHA

According to the News and Review:

"AgraQuest was founded in 1995 by Pam Marrone, a respected entomologist who had specialized in agriculture and insects at biotech giant Monsanto. Bell was a semester away from earning a bachelor’s degree in biology from Sacramento State when he started at the company in 1998. According to the transcript from his first workers’ compensation hearing, Bell worked primarily on two biopesticide projects, Laginex and Serenade.

Laginex is the brand name of Lagenidium giganteum, a water mold (fungi), which infects and kills mosquitoes. In a series of experiments, Bell documented what happened in water with mosquito larvae and Laginex and how to lengthen the biopesticide’s shelf life.

Serenade is a biopesticide used to control insects on crops. Its active ingredients are the Bacillus subtilis bacteria, which AgraQuest first found in a Fresno peach orchard. Bell tested soil samples taken from locations worldwide, using a fermentation process to extract the bacteria. He and a co-worker filled 10-kilo bags of Serenade from a larger drum. Bell did not wear a respirator while loading the Serenade."

At the March 18, 2008 Davis City Council meeting, the Davis City Council presented Pam Marrone with the 2007 Business and Economic Development award. According to the News and Review, "Marrone left AgraQuest in March 2006 to found Marrone Organic Innovations in Davis."

Marrone declined to comment for the News and Review Story; however, in October 2002, they write:

"As recently as October 2002, Marrone wrote that Serenade is “safe to workers and ground water,” in the industry journal Pesticide Outlook. At the workers’ compensation hearing, Denise Manker, AgraQuest’s vice president of global product development, testified that the company and its employees followed proper safety procedures and had tested its strain of Bacillus subtilis to ensure it did not contain a substance that causes allergic reactions. While noting that soil samples in the laboratory can be hazardous if handled incorrectly, she said it was highly unlikely that Bell had become infected by the Bacillus subtilis, since it’s not known to be harmful to humans."

Doug Haney is an advocate for human and patient rights who specializes in mold and microbe exposure. He wrote a book entitled "Toxic Mold! Toxic Enemy!" In it, he argues that over the years many researchers and doctors have been skeptical about the possibility of micro fungi infection, however in recent years there is increasing evidence of the danger of such organisms.

David Bell visited the Mayo Clinic in Arizona and they discovered a whole range of possible infectious agents. Sandi Trend, Bell's mother, was able to link many of the agents in the patents that AgraQuest was using to agents found in David Bell's body over the course of the last decade.

"According to peer-reviewed articles in British medical journal The Lancet, and other sources, serious questions have been raised about the safety of Bacillus subtilis for humans and animals.

Tests conducted at the clinic determined Bell had histo yeast, a mold found in soil, in his blood serum. He had developed histoplasmosis, which according to the federal Centers for Disease Control and Prevention affects the lungs and other organs and can be fatal if not treated."

Unfortunately, it does not appear that OSHA, the Occupational Safety and Health Administration is equipped to handle this sort of problem.

CAL-OSHA investigated AgraQuest and found three of its ventilator hoods did not meet state standards. However, this was unrelated to the problems that David Bell is suffering from.

One of the big problems was pointed out by esteemed Dr. Larry Rose, who was the last doctor that worked for CAL-OSHA. OSHA has increasingly relied upon industry doctors and more often they have simply looked at smaller technical problems. They simply do not have the expertise to examine and diagnose this sort of problem.

As Larry Rose pointed out during a video interview which also featured local Davis activists and author of "Death on the Job" Dan Berman:

"When you're called in and a worker has possibly picked up a very serious infectious disease from the work process, you don't just go in and measure a face velocity and give a tag. You've gotta do some... you know real investigation. Go over all the medical records and you've got to get the organism and submit it to the proper lab to determine it's patogenicity. In other words, there's a series of steps you would take because you're not only trying to protect all the workers there now and future workers, but you also have to protect the community when you're talking about an infectious disease, this is a serious public health matter. So looking at what OSHA did [and] I'm just astounded that they had that kind of very weak response, inappropriate response according to the law."

THE THREAT TO DAVIS--BIOTECH LAB IN A RESIDENTIAL NEIGHBORHOOD

As Doug Haney pointed out to me early on in my examination of this potential problem, he would be much less concerned about the possible health implications for the surrounding community of Davis if he believed that the lab was properly contained from the outside environment. Instead both photographic evidence and testimony from David Bell lead us to the opposite conclusion.

"The 20,000 microbes that they boast had been discovered throughout the world... were not fully contained in a way that specialized laboratories would require. That means they were in drawers, that they were open at some point, and exposed employees to whatever they were, they were unanalyzed, they were not determined at any point as to whether they were dangerous or not dangerous. That type of thing tells me that the laboratory was not a well-kept laboratory. The other part of it is that the building was in a residential area rather than a specific area for laboratories over in the Davis area."

The problem as Mr. Haney pointed out:

"[AgraQuest was] very soft in their application of training, in fact there was little or none that I know of that David [Bell] indicated. There were open suitcases of dirt or soil that had been brought in from foreign countries that were exposed in the laboratory. OSHA and other standards for laboratories indicate that you should not have any kind of drinks or foods associated in the actual work areas of laboratories, they have to be set aside, that wasn't the case at AgraQuest."

One of the biggest points of concern are photographs that show considerable corrosion on the outtake pipes several years after the lab moved from Kennedy Place to Drew Avenue. Is this residual pollution from the AgraQuest lab? Doug Haney believes so. As alarming was the fact that the dead crow in the picture above lay just beneath the pipe--undecomposed for two weeks between the time that the picture was taken and when Mr. Haney inspected the location.

"Ms. Trend had gone to that location about two weeks before I had a chance to view and told me about the fact there was this bird out there that was under this water outlet that showed a lot of corrosion, a lot of chemical build up. One thing about microbes, especially microfungi, is that they are the first to decompose in the external elements outside. This bird was not decomposed which told me that the company that produced the chemicals, Agraquest, were to destroy microfungi. And in this case, it kind of gave me the conclusion that those chemicals even six years after they had moved from the building were still strong enough and in the soil enough to eliminate rapid decomposure that rapidly takes place after an animal or person or a live species dies."

It would be a fairly easy task to have an agency or the health department take soil samples from around this building and determine if this actually represents a threat to the health of Davis and whether or not AgraQuest was responsible for this contamination of the environment.

Another concern is accounts by David Bell that indicate the use of a type of drain as a place to dump chemical and possibly biological residues.



David Bell told the Vanguard by phone from his current residence in Texas:

"It was more like a concrete culvert that enters onto a lawn, I don't think it actually goes into a sewer system. They chiseled out most of it already. It would kind of be like a big water runoff area, it was concrete and kind of sloped to the center, and that's where the cleaning of everything took place."

In the video that featured Dan Berman and Dr. Larry Rose, Sandi Trend, the mother of David Bell gave a full description of what occurred:

"David was instructed.... He was told to pick up this "drum" that was on an offsite farm because they wanted to use this drum for other broth, fermentation broth. So what he did is he went over to this farm and he brought it back and there was still liquid in it. So he didn't really know what he was suppose to do so he was told to clean it out and dump it down the drain. What drain? Well outside the lab..... and I went up there after this because I was trying to visualize in my mind, he's telling me that they mixed up powder in the bathroom and that the only ventilation was the bathroom fan, which is a normal household fan - ok. So I'm trying to visualize this and when I get there I'm going, "What drain"? And I wasn't the only one that was there so there was somebody with me. It's like "what drain" and "I don't see a drain" and it's like "Well I wonder if that's what David's talking about "? And what it was was it was like a storm drain, right outside the lab door that had just been hollowed out into the concrete and it led right into the dirt. So, when I called up David I go, "Is this the drain you're talking about"? He says "yeah". And excuse the expression... ok? I go "you dumped it out there"?! And he said, "that's where we dumped everything". I said, "what the hell did you do that for"? "That's were we dumped everything Mom, that's where I was told to dump everything". So, right into the dirt."

The Vanguard asked David Bell whether there were pathogens in the drums:

"There should have been by that point [live pathogens in the drum]. Everyone was arguing whether bacillus subtilus was pathogenic, however the fermentation process would get contaminated. If it sat that long there definitely could have been anything sitting in there. The fermentation process was still relatively rich in nutrients. So once it’s opened up to the air for the very first time things start in at that point."

In addition to dumping drums in the ground, there was also loss of some of the specimens from the lab.

"We were losing mosquitos all the time until I came up with a system to hold them in a mason jar with a screen on it. We were actually losing mosquitoes that weren't even endemic to our area in our area."

What kind of mosquitoes I asked David Bell:

"In particular what we were releasing were the malaria mosquitoes. There was no way to keep them contained when I showed up there."

He said he believed the number that were released was probably too small to allow them to reproduce, but nevertheless this is another example of the lax control standards at the original.

AgraQuest's new location on Drew Street may in fact be much more secure and up to date in their practices. It is important to note that the OSHA violations occurred at the new Drew Street location rather than the original location on Kennedy Place. As far as anyone knows, OSHA never inspected the original lab on Kennedy Place.

Where does this leave Davis at this point? It is difficult to say. Someone needs to thoroughly examine the soil around Kennedy Place to determine whether or not the agents in the soil represent a health threat to the Davis community.

I asked Doug Haney how big a concern this was. He pointed out that scientists estimate there are roughly 1.5 million microfungi and other species that have not been discovered and we only know about perhaps 400,000 species. That means you have an area from a foreign country that has ben excavated, you have a lot of unknown factors here.

"When you excavate an area that has never been excavated before into a foreign country, you are bringing those microbes in a new area and what happens with microbes in order to survive, they either fight off or ward off other species, or they integrate with other species and hybrid the species which makes them far more dangerous. "

Moreover, these species can survive for long periods of time as spores or in dormant stages. The health implications are unknown but potentially very serious.

"You could possibly rise in say neurological diseases, a rise in lower birth rate, a rise in cancer, a rise in leukemia, a rise in serious diseases."

These could show up almost immediately in some cases such as David Bell or they could could impact the population down the line. It could be 10 to 20 years before some of the implications of this are fully known.

Again, much of this is simply unknown because no responsible agency or regulatory agency has really investigated the matter. That is perhaps the most alarming aspect of all of this.

On October 1, 2007, Sandi Trend and Doug Haney met with District Attorney's Office Investigator Dan Stroski. Mr. Stroski was immediately interested and alarmed, however, he informed them some time later that the Yolo County District Attorney's office did not have the resources to do such an investigation.

The Vanguard will have a follow up article on this next Monday where we will examine the implications for how AgraQuest got these soil samples into the country and the potential threat that that represents.

---Doug Paul Davis reporting

100K Club of Yolo County

Two weeks ago, we had our listing of the 100K Club of Davis. In it were the 61 employees of the city of Davis who earned $100,000 or more in 2007. Of those 61, 48 were in public safety and 38 of those were firefighters. Now we have compiled through another public records act request the 100K Club of Yolo County. There were 64 Yolo County employees who earned $100,000 or more in 2007.

• CLICK HERE For the full list of 64 Yolo County Employees

The top employee of Yolo County in terms of salary not surprisingly is Sharon Jensen, who is the County Administrator (CAO), a position comparable to a city manager. She is followed by Sheriff Prieto. County Council Robyn Drivon is fourth. District Attorney Jeff Reisig is perhaps somewhat surprisingly only 9th. There are also three members of the Psychiatrist-Board in the top 10.

We have also broken down the elected officials who made the 100K list.



For the sake of comparison, we threw Public Defender Barry Melton on this list even though he is appointed rather than elected. Notably not on the list is the County Superintendent of Schools. Also as people are aware, Yolo County Supervisors make considerably less than $100,000. Also, the Public Guardian does not make the list either.

Breakdown by Department: District Attorney's Office Dominates



There is no department in the county, that is comparable to the firefighters in the city of Davis which had 38 of the top 61 salaries for 2007. However, the District Attorney's office did have 15 of the top 64 salaries, three times that of the next highest departments--County Administrator and Planning and Public Works. Child Support Services, Mental Health, the Public Defender's Office, and the Sheriff's Office all had four employees each in the 100K club of Yolo County.

City of Davis Compared to County and Woodland

One of our Woodland Counterparts, the Woodland Journal just ran their 100K Club of Woodland this past Sunday. They found 18 employees who will make $100,000 or more this year and just 10 employees last year.

To put these numbers into perspective, the city of Davis had 61 employees reach the 100K Club in 2007 out of a total of 422 total employees. That's roughly 14.4% of the employees in Davis. Yolo County by contrast has between 1300 and 1500 total employees of which 64 make 100K or more. That translates at the high end to just under 5% of the employees of Yolo County making 100K or more. We do not have the exact numbers in Woodland, but we imagine the total number of employees is comparable to Davis. That would put them in the range of Yolo County for percentages this year even lower than that last year.

Why is the salary structure in Davis so different from that of Woodland and Yolo County? One really has to look no further than the influence of the public employees unions in local politics and really we are talking about one public employees union--the firefighters. As we noted, 38 of the top 61 salaries in Davis are firefighters.

The Woodland Journal notes:

"Common to both cities is the relative earnings by those who accrue overtime. An examination of the public records provided by the city reveal that 30 Woodland employees made over $10,000 in overtime pay during 07-08. Of those 30, only one employee did not work in the police or fire departments.

...

86 employees made over $5,000 in overtime. Three of those did not work in the police or fire departments."

This shows that the same phenomena is at work in Woodland, but not nearly as severe as it is in the city of Davis. The County of course does not have a Fire Department. It has a large contingent of workers who provide crucial county services to residents, but most of them are not making the huge salaries with the huge overtimes that the city public safety workers earn.

Tomorrow we will attempt to complete the circle by presenting data on campaign contributions by public safety employees in the city of Davis.

---Doug Paul Davis reporting

Public Defender Melton is Off The Topete Case, Should He Be Out as Public Defender?

Public Defender Barry Melton officially removed himself yesterday from the case of accused Sheriff's Deputy killer, Marco Topete. Officially it appears we do not know the nature of the conflict of interest.

Barry Melton was immediately replaced by Hayes Gable III of Sacramento and Tom Purtell of Woodland. The defendant is in excellent hands with two lawyers experienced in capital murder cases.

However, Barry Melton's departure from this case leaves more questions than answers. Both of which are hinted at by an excellent article in the Woodland Daily Democrat on Friday morning.

In it, it chronicles the relationship between Barry Melton, Sheriff Ed Prieto and Judge Dave Rosenberg.

According to the article by Daily Democrat Staff Reporter Luke Gianni:

"Topete's wife, Angelique Topete, told the Democrat Thursday she witnessed an argument between [Deputy Public Defender Dean] Johansson and Melton last week at their office in Woodland days after Melton filed his motion.

She said Johansson was concerned over the political connections Melton shared between Yolo County Sheriff Ed Prieto and Rosenberg."

The article goes on to quote Mrs. Topete:

"In the process of Dean doing his investigation, he dug up a lot of stuff between Melton, Prieto and Rosenberg and that pissed Melton off."

The bottom line here is that the Daily Democrat dug up--what many of us have known for a long time--the fact that there is a strong relationship between Barry Melton, Ed Prieto, and Dave Rosenberg all of whom hang in the same Davis political circles and all of whom have contributed money to each other's campaign.

The Democrat continues:

"According to county election records obtained by the Democrat, all three men have contributed funds to each other over the last 10 years as their political careers have progressed.

Ed Prieto's political action committee "Citizens for Ed Prieto," received monetary contributions totaling around $600 from Rosenberg's political fund starting in 1998 when he ran for Sheriff up and until his last contribution in 2003.

Records also show Melton contributed a little more than $300 to Prieto's fund from 2000 to 2003.

As for Rosenberg, his "Friends of David Rosenberg" fund has received more than $150,000 in political contributions over the last decade before morphing into the "Judge David Rosenberg Committee," which was formed in 2003 during his run for a judicial seat.

From 1999 to 2003, Melton had contribute[d] more than $900 to this fund, records show.

The monetary ties between the judge, the attorney and the organization that employed the man her husband allegedly killed, has Angelique concerned over his chances at a fair trial."

The Democrat then brings in Judicial ethics expert Carol Langford, an adjunct professor at UC Hastings Law School. She told the Democrat that the political contributions did not mandate withdrawal from the case, but she also suggested a "voluntary step down to assure the public the case is being handled fairly."

"What I would say is you probably want to give that case to one of your panel people. You want to make sure that everyone is doing a good job and that there's the appearance that everything is fair and just. It's important that people think they're getting a fair shake especially in a small town."

So is this the reason that Barry Melton is recusing himself from the case? If so, there are more serious problems on the horizon. If he must remove himself from this case, does he then have to remove himself from every case involving Judge Dave Rosenberg? Does he have to then remove himself from every case involving the Sheriff's Department? Right there, that's a lot of cases? Did he also support Judge Tim Fall in his reelection bid this past June? Would he have to remove himself from any cases involving Judge Fall as well, if he did support his reelection?

But that is just the tip of the iceberg. The real kicker is that the Democrat did not complete the circle here. Back in 2006, there was a rather heated battle for District Attorney between fellow deputies Jeff Reisig and Pat Lenzi. Jeff Reisig eventually won that race by a rather narrow margin. Barry Melton did not formally endorse Jeff Reisig but behind the scenes he was a powerful advocate for Reisig and frequently attacked Pat Lenzi.

There's of course more to this than just that. Barry Melton did not himself donate to Jeff Reisig's campaign, but his wife, Barbara Langer did. The Democrat probably did not know to look for contributions to Jeff Reisig from Barry Melton's wife, but the support from Melton to Reisig is well known.

If indeed the reason that Barry Melton withdrew from this case had to do with the close political relationships here, then it calls into question Barry Melton's entire position as public defender. As such a political animal to begin with, perhaps Barry Melton is not the person best suited for this position.

This is all unfortunate for the family of the slain Sherrif's Deputy but also the Topete family that is entitled to a fair trial. Last week, members of Topete's family wanted Dean Johanson, whom Marco Topete trusts, to stay on the case. Now it appears that Barry Melton's entire office will drop out of the case.

The good news from Topete and for Yolo County is that he is in very capable hands. He was assigned first class defense.

But as this entire saga has shown, there are serious cracks in the Yolo County Justice System's foundation. The public defender as many have known for some time, seems to be right in the middle of the problem.

---Doug Paul Davis reporting

Commentary: Death Penalty Case Weighs on Our System

In Friday's Sacramento Bee is a story about Judge Stephen Mock ordering the death in the killing of a California Highway Patrol Officer in 2005. Judge Mock ordered the death of one of the convicted killers of the officer, a man who is just 22 years old.

I have little sympathy for a person who would kill an officer of the law or frankly anyone else.

And yet, I have long been against the death penalty. I do not believe the state has the right to end another's life. I also do not believe there is a way to apply it fairly across the board and as a result people who lack the means to afford good legal representation systematically receive the death penalty in far higher numbers for similar crimes.

I have barely covered this case but it weighs more heavily on me than most. Perhaps that is because at two separate points in time I was asked to intervene on behalf of the defendant.

The first time occurred over a year and a half ago when the defense was trying to get Judge Mock disqualified.

At the time, Judge Mock was the lead Superior Court Judge in Yolo County. He had the responsibility of assigning cases to judges. He no longer is in that position, it is a position held by Judge Dave Rosenberg.

At the same time, his wife was Chief Deputy District Attorney. It was her job to assign cases to prosecutors.

The Vanguard had covered this issue prior to the December 2006 article and in fact, the relationship between Judge Mock and Ann Hurd seemed problematic in some other cases I was aware.

It would be reported:

"An out-of-county judge, specially appointed to hear the controversy, has already decided in favor of Mock. That judge ruled that though it was a "close call," Mock can remain impartial."

A year and a half later, Judge Mock is signing the order to send an individual to death row. Maybe he was completely fair in the trial, I was not there. The appearance of a conflict here is important though. The people prosecuting this case are the same people that are colleagues and underlings of Judge Mock's wife.

The fact that I provided the defense attorneys with information and witnesses to Judge Mock gives me some connection to this case.

I am a strong believer in transparency in government. I think the fact that Steve Mock is judge in this county means that his wife should not be the chief deputy DA in this county. That is no slam against Ann Hurd, I have seen her in action and she is very good at what she does. But I think for the sake of both of their credibility there needs to be some distance.

Ironically, my indirect involvement in this case did not end there however. I had a second opportunity to intervene in this case a few weeks ago. Apparently Rick Gore was one of the investigators into the case and every case he was involved in is now in some sort of question. In this case, I was unable to help and some time in the future a man will die.

We have a system where the difference between life and death is based on very narrow distinctions and findings of fact. It is based on the ability of lawyers to provide good defense. It is based on the ability of the defendants to pay for these lawyers to provide good defense. It is based on a whole host of facts and matters that should not matter.

The innocence project has freed many people who were wrongly convicted in courts of law. Some of that is based on newly available technology such as DNA testing. But at its core, the reason that innocent people are convicted of crimes is that the justice system is based on the work of human beings and human beings make errors. Not only do they make errors that lead to them committing crimes but they make errors in their attempts to determine who did what and what the appropriate punishment should be for a given crime.

A person who is freed after serving 17 years cannot recoup their 17 years in prison. But at least they can be freed to start a new life, such as it is. You cannot bring back the dead. Perhaps it would be better if we did not have to try.

I have seen very little evidence that the death penalty is a deterrent to future crimes committed by other individuals. I have seen very little evidence that the death penalty works better than life without parole. It would sure make these matters just a little easier.

In the meantime, I will continue to ponder how I played a very small part in a case, that I have no direct knowledge of nor do I know any of the parties.

---Doug Paul Davis reporting

Preliminary Gang Injunction Granted

The Sacramento Bee reports this morning that Judge Kathleen White has allowed the preliminary gang injunction to go forward.

"In her six-page ruling, White said prosecutors had shown "by clear and convincing evidence" that they probably would prevail at trial on whether broad and long-lasting restrictions were needed to combat gang crime in the Broderick and Bryte neighborhoods.

The potential harm to the defendants – including two dozen alleged gang members named by prosecutors and up to 400 unnamed individuals – was outweighed by the harm to the community if the injunction had not been issued, White wrote."

On the other hand there were some limitations to the injunction:

"But White also said the criteria proposed by prosecutors for identifying gang members were overly broad and "would likely result in the curtailment of the rights" of residents who had little or no connection with gangs.

She limited the injunction to active gang members, including those who admitted to being Broderick Boys or were named by reliable informants as gang members.

Included under the judge's order are those who have tattoos associated with the Broderick Boys."

Civil rights attorney Joshua Kaizuka believes that the police still have very broad discretion in identifying who a Broderick Boy is and to curtail their civil rights.

Now that the preliminary injunction is in place, there will be a trial to determine if a permanent court order should be issued.

Commentary:

I remain concerned as Mr. Kaizuka does, that the police have very broad discretion in identifying who a Broderick Boy is. There have been numerous complaints by citizens that this injunction has led to the curtailment of the rights of residents who are not affiliated with gangs. This is reinforced by comments made by the Judge here.

The criteria put forward by the Judge remain overly broad. Those who admit to being Broderick Boys--does that mean under some formalized process or could they simply be compelled to sign a waiver as a condition of release from prison on a minor charge? This has been an accusation put forward by opponents of the injunction. Those named by "reliable" informants seems even more broad and more subject to problems.

Is there some kind of procedure where a person affected by the injunction can appeal that? Since this is a civil penalty, they are not entitled to court appointed representation. As a result, top caliber lawyers such as Mark Merin, Joshua Kaizuka and others have volunteered their time. Future defendants likely would not have access to top notch representation if at all.

My final problem remains with the process--it turns the justice system on its head by removing the due process of law requirement for loss of liberty while at the same time making it a civil procedure rather than a criminal one, meaning there is no right to an attorney.

I simply cannot get passed these waiving of cherished constitutional principles. People have repeatedly in response to these arguments suggested that gang members are bad people and questioned whether I have witnessed their wrath first hand. I have no doubt in the world that some of these gang members are bad people, but I believe even really bad people are entitled to due process. I also believe as Judge White seems to that this net will catch not only really bad people but people who really are not bad at all. That troubles me greatly. I would think there could be procedures put in place to allow the bad people to be prevented from associating with gangs while at the same time give the good people a chance not to get caught up in the net. It is hard to believe that this is a radical notion, but for some it seems to be.

Judge White spoke repeatedly about trying to avoid allowing the political to get into the courtroom--an admirable stance. However, at the end of the day, it is the legal and the constitutional aspects of this that remain most troubling to this non-lawyer.

---Doug Paul Davis reporting

Gore and Lenzi Respond to District Attorney's Office

Earlier this week, the human resource officials investigating the complaints by the District Attorney's Senior Investigator Rick Gore, dismissed all charges for lack of evidence.

"Every material allegation made by Rick Gore was not substantiated. It was not substantiated that Jeff Reisig was or is engaging in unethical practices. There is no indication that Rick Gore was subjected to a hostile work environment, that he was retaliated against for exercising his rights, and/or that he was discriminated against on the basis of a legally protected category."

In response District Attorney Jeff Reisig issued a lengthy statement claiming vindication.

"I am grateful that this matter is now closed and that all of the individuals who were wrongfully targeted have been vindicated and now afforded an opportunity to respond... I am looking forward to getting back to work for the citizens of Yolo County."

At the same time, both Reisig and his employees continued to make allegations against former Deputy DA Pat Lenzi.

As reported in the Woodland Daily Democrat on Wednesday:

"In that same statement, officials at the DA's Office reiterated their belief that Gore's public accusations were in part orchestrated by former deputy DA Patricia Lenzi.

Lenzi ran an unsuccessful and, at times, bitterly worded campaign against Reisig in 2004.

DA investigator Peter Martin said in a prepared statement that Lenzi called him the evening before the allegations were made public to "discuss" Gore's letter, which he characterized as an effort to "undermine" and "embarrass" the District Attorney's Office, which employs nearly 120 people and handles around 8,000 cases annually.

"I was quite shocked to discover that Pat Lenzi was actively involved with Mr. Gore in pursuing these accusations," Martin said in the statement. "I thought she had moved on with her life after losing the election and resigning from the District Attorney's Office in 2006."

The Daily Democrat reported as well, "Neither Gore or Lenzi could be reached for comment as of Tuesday evening."

In fact it became clear that the Daily Democrat did not have current contact information for either.

Both Lenzi and Gore have now issued responses to report and to the DA's office response. These responses are reprinted here in full and without editorial comment.

Response by Rick Gore

I received a copy of the same report provided to the media that was prepared by Yolo County. I am disappointed with their report, lack of findings and continue to stand by my letter. It is not surprising that a Yolo County directed and controlled investigation would not find any allegations against their Department Head substantiated. After all, if they admitted to wrongdoings of Mr. Reisig, they would be accepting and admitting liability for his actions. Financially and legally, that would not be prudent. From my first dealings with County Counsel on this matter, it has been clear that they were adversarial with me about my letter. I would describe County Counsel has being as helpful as a rattlesnake in a dark room, on this matter. To put this investigation in perspective, if I were allowed to hire an attorney to conduct this same investigation, keep my investigation secret and then get the media to release my report of my findings, does anyone have any doubt that my report would be very different from the county’s report.

As for Mr. Reisig’s comments about his staff being accused only displays his unique way of deflecting my letter by trying to make it about other employees and politics with a former Deputy District Attorney. My letter was about Mr. Reisig and is consistent efforts to undermine checks and balances of the system, to grab more power from other law enforcement agencies and to enhance his political career, by whatever bully means he deems necessary. He makes it difficult for anyone to stand up for what they think is right or anything against his political agenda.

The comments posted by some employees are very “company line” responses, which I am sure, were reviewed and approved by Mr. Reisig. Since a few of these people are “at will” employees and serve at the behest of Mr. Reisig, I would not expect them to say anything negative about the person who could release them from their job without cause. Which is exactly the reason that Mr. Reisig had many positions changed to “at will” shortly after his taking over the office.

It is unfortunate that so many other people have had to have their names mentioned and dragged into this. This has never been about accusing other employees of anything, this is about Jeff Reisig. I am confident that anyone that was mentioned in my original letter or may done things that were questionable, were acting on direction or orders from Mr. Reisig. Although Mr. Reisig is a good young lawyer and an exceptional politician, I have never accused him of being unwise. The only complaints that the county substantiated were the ones where I had copies of emails from Mr. Reisig, so it would be hard for them to deny those. Mr. Reisig is smart enough to know that in order to survive his unethical practices he must not put things in writing, limit his witnesses to his behavior and he has to keep himself isolated with others so he can claim “plausible deniability” or “have someone else to blame.” Since most of my complaints happened between Mr. Reisig and me with no other witnesses, it is easy for him to say it never happened. So, many of the “not substantiated” findings were because these things happened between Mr. Reisig and me in a private setting. I might add that these private meetings were by Mr. Reisig’s design and not by accident. The angst of all these issues are with Mr. Reisig not anyone else.

I do wish the media would give a more balanced view of this investigation. I think it should be noted that no one in this investigation was questioned under oath, asked to sign a statement under penalty of perjury or sworn under penalty of perjury. I was the only one required to talk about my letter, under oath in open court. For me to testify under oath that I was ordered by Mr. Reisig, via DDA Linden, and then for the county to make a grand finding, in this extended and complete investigation, that this was “not substantiated” seems suspiciously odd. For the people out there that want to critically think and evaluate this, Mr. Linden nor Mr. Reisig took the stand and challenged my testimony. We call this a clue in law enforcement.

The County also found that Mr. Reisig did not order or direct me to only serve one person in the first Gang Injunction. If anyone would care to pull the record of Mr. Reisig’s testimony, in front of the California Appellant Court, I am sure they would find that Mr. Reisig told the court that he did in fact only serve one person since that is all he was required to do by law. The court disagreed and overturned his injunction. I am sure this is just another small oversight of the county’s complete investigation. Another shameful finding of the county is that Dave Henderson did in fact have to order Mr. Reisig to discover the gun flash test during the Halloween Homicide trial. Then the county made the finding that the test was not discovered because of my objections. In all my years, I have never had to go to the District Attorney because a Deputy DA was trying to withhold evidence from the court and the defense. The fact that this incident had to be elevated to the District Attorney, Dave Henderson, and he had to order Mr. Reisig to turn it over, is pretty good proof that this evidence was being concealed and was not going to be discovered without my objections. This appears to be another missed opportunity in the county’s investigation. I could go on with each of the county’s findings, but as the county said, it would moot, they found what they wanted to find.

Another fact about press releases that most people are not aware of is that all press releases from the DA’s office are written and or approved by Mr. Reisig. Therefore, everyone who reads the Jeff Reisig prepared press releases should analyze those articles as a political tool for Mr. Reisig to get “his” message out, the way he wants it perceived. I would again ask the people of Yolo County to critically evaluate press releases and understand they were written by Mr. Reisig and simply reprinted by the local news media. I would challenge anyone out there to find an article about the DA’s Office where Mr. Reisig admitted a mistake or accepted some responsibility for doing something wrong. You will not find it since it would not be in Mr. Reisig’s political interest to release one of those and the media normally only prints what Mr. Reisig gives them.

Lastly, the finding about Mr. Reisig’s speech did not impact the investigation seems minor and probably unclear to most. So people understand what this was about and what kind of man Mr. Reisig is, I would like to explain it a bit. When the county’s investigation started, I was ordered not to discuss the investigation and was told everyone else would be ordered not to discuss it. After I received this notice, the next day, Mr. Reisig had a mandatory meeting with every DA employee. In this meeting, he called me ignorant and made other disparaging comments about me to every employee in the office. In these comments, he accused me of interfering with and impacting the CHP murder trial and tried to connect me to the grief of the wife of the slain officer. Anyone could see that this was a warning and a message that if anyone else spoke out against Mr. Reisig, this is what they could expect. I contacted county counsel and HR and expressed what a cowardly and despicable act I thought this was by Mr. Reisig. People want to talk about dirty politics; it does not get much lower than that. The county’s response to me was Mr. Reisig has the right to do what he did. Of course, the county did not see this "public bashing" as retaliation for my letter. Since I know the county’s position on this matter, I would like to ask the people that elected Mr. Reisig to ask themselves a question. You have read, in the recent press releases from Mr. Reisig, all the grand accolades about Mr. Reisig and his ethics. For a man to use his position and power to compel his entire staff to a mandatory meeting, in a county building, where county employees are compelled to be there and then use this meeting to publicly make disparaging comments about me and my letter and infer that I am to blame for the grief of a slain CHP officer and doing this while knowing that an investigation is about to be initiated appears disgraceful at best. His actions to use a death of an officer and the grief of his spouse, for his political benefit shows a real lack of character. I ask the voter’s is this behavior really the actions of a honorable man, who is ethical, trustworthy and who has nothing to hide? I think not, but I would ask everyone to make his or her own conclusion.

My advice to anyone else who sees or knows of inappropriate conduct in Yolo County is to embrace the conduct, support it and be a good “team player”. If anyone expects honest support from Yolo County, I believe they will be sadly mistaken. This would explain the sudden loss of many senior people that have left the office since Mr. Reisig took office.

Response from Former Deputy District Attorney Pat Lenzi

Dear Mr. Reisig:

You have recently issued press releases, and you and your staff have given statements to the press regarding Rick Gore that have included false allegations about me. These pronouncements by you and your office have been published by several local media outlets including, but not limited to, the Davis Enterprise, Woodland Daily Democrat, and the Sacramento Bee.

I requested that you immediately issue a retraction of the false allegations against me that you, your office and/or staff have issued in the matter pertaining to Rick Gore. I demand that you cease and desist from any further attempts to defame me and malign my character.

In order to provide you with accurate information such that you may base your retraction on facts, I offer the following:

- I did not write Gore's letter.

- I did not call the D.A.'s office regarding Gore or his letter

- I did not speak to Pete Martin regarding Gore or his letter. In fact, I have not spoken to Investigator Martin since shortly before I left the D.A's office nearly two years ago.

- I did not call anyone at, or associated with, the Yolo County D.A.'s office to "plead Gore's case."

- I did not go to the Attorney General's office with Rick Gore, or on his behalf.

Furthermore, I have no record of any calls or any contact of any sort from any reporters prior to the most recent news stories in the paper surrounding Rick Gore. I find statements to that effect objectionable.

Finally, I am not a candidate for office. I am a private citizen now. Those who continue to force my name into press releases and publications, using false statements about me that are libelous and are defamatory to me show a reckless disregard for the truth. This must cease immediately.

In addition to you issuing a retraction, I would appreciate an apology as well.

Signed,

Pat Lenzi

---Doug Paul Davis reporting

Commentary: Serena Case Continues to Illustrate Problems with Yolo County Justice System

This past weekend Former Yolo County Housing Authority Director David Serena was back in Yolo County, this time to join with friends and supporters in celebration after having 19 felony charges of theft and fraud dismissed last month in Yolo County.

It was just the latest blow to the Yolo County District Attorney's Office. Tomorrow, the Gang Injunction Hearings resume and Rick Gore is expected to take the stand yet again, almost a month to the date after he fired off an angry letter. Since that point, case after case has come to our attention. During the course of this week, the Vanguard may report on several of the more disturbing ones to reach our radar. There is little doubt that the Yolo County District Attorney's Office has literally ruined people's lives over what should have been minor incidents or even cases where the individual was innocent completely.

Fortunately for David Serena he had the resources and the legal team to fight the charges. He is now planning a lawsuit against the grand jury for harassment.

A good article came out in the Monterey Herald a few weeks ago on the Serena Case.

"David Serena, a long-time Salinas activist and former Hartnell College trustee, used the 1987 book "Gringo Justice" by Alfredo Mirandé when he taught Chicano studies at Cal-State Northridge. In the book, Mirandé explores a theory called "mobilization of bias," which he describes as an orchestration by politicians, the courts, the media, and the police to present a negative image of Chicanos, resulting in a double standard of justice.

So when Serena was charged with 19 felony counts of fraud and theft — charges he was recently cleared of — he said he felt subject to the same phenomenon Mirandé described.

"I never thought I would be in that position," Serena said Monday. "I was publicly lynched, found guilty without a trial. You know you didn't do anything wrong, that this is absurd, ludicrous; and you also know that in the history of Chicanos, a lot of them were unjustly accused for political retaliation. And you realize it can happen to you."

The charges in fact all stemmed from the claim that David Serena had illegally added his live-in girlfriend's two children to his medical insurance.

The district attorney said Serena had included his girlfriend in his health insurance even though he wasn't married. His assistant later declared under oath that she'd been the one to check the "married" box, based on a false assumption. Because his girlfriend's two children lived in his household, Serena said insurance rules allowed him to include them in his coverage.

After two days of testimony at a preliminary hearing earlier this year, Judge Richard Kossow wrote on March 15 that he found no evidence that Serena was not entitled to add the children to his employee dental and health insurance.

"The court does not find reasonable cause to believe the defendant did anything false to induce the governmental agencies and business entities to provide that coverage," Kossow wrote. "

Serena claims in the Monterey Herald article and he claimed to me on the phone when I spoke to him a month ago that the charges stemmed for a protest involving the death of Juan Nieto who died after a police chase in 1999.

Serena's troubles began in 1999, when he took a job as head of Yolo County's housing authority. A few months into his tenure, a 23-year-old man died while in custody of Woodland police. Juan Nieto, 23, had been chased down by officers who wanted to arrest him for buying alcohol for two underage police decoys, and he died in a motel courtyard on Dec. 3, 1999, according to news reports.

Serena, who lived in Monterey County for decades, had been involved in the Chicano movement and was a key figure in high-profile political cases. He was a plaintiff in the lawsuit that forced district elections of judges in Monterey County, bringing Latinos to the bench for the first time.

In Yolo County, Serena said, community members asked him to help organize a rally after Nieto's death. He put together a 3-mile march that grew to about 500 people outside the Woodland Police Department's headquarters, he said, demanding an investigation.

The district attorney refused to investigate the matter, so Serena called on other agencies. Eventually, the incident was investigated at the federal level, and in 2002, the family settled for almost $300,000 for Nieto's death.

Serena believes that incident sparked a political persecution that lasted until he resigned from the Housing Authority in 2006.

According to Serena, soon after the Nieto case, the grand jury began to receive allegations of mismanagement and wrongdoing.

"Soon after his involvement in Nieto's case, the county's civil grand jury began receiving allegations of mismanagement and wrongdoing at the housing authority, prompting a six-year investigation lasting through six grand juries — until most of the charges were dismissed by a visiting judge in the 2006-07 report.

"I've looked at 20 or 30 reports, and it's outrageous that grand jury reports would have these kinds of factual mistakes," said Matt Gonzalez, former San Francisco county supervisor and Serena's attorney."

The repeated harassment by the grand jury led to a lawsuit against the grand jury at the time for discriminatory seating practices.

Each year his agency was investigated, Serena was asked about his qualifications and experience, because one of the claims was he was not qualified for the job. At some point, he said, he felt harassed. He began to question why there were very few minorities on the grand jury. The county is 30 percent Latino.

Then, in 2006, only a few days after he filed suit against the grand jury for not seating enough minorities, Serena was charged with the 19 felony counts. "

...

Although a federal judge threw out Serena's lawsuit against the Yolo County grand jury, Gonzalez calls it a partial victory.

"His lawsuit changed how they select the grand jury" in Yolo County, he said. "There's never going to be a disproportionate representation of Latinos again. Ultimately, we showed very disturbing patterns of lack of racial diversity."

After I published my initial account of David Serena's vindication, I received a series of emails and comments highlighting problems that Serena had in the YCHA. I would argue that to the extent that there were problems these should have been handled administratively not legally. To the extent that the Grand Jury and District Attorney's office sought legal redress, it seems odd that they were only able to find one aspect of his tenure that they could charge criminally, and that was based on particularly weak evidence. There is just little evidence that the insurance claims filed by a clerk erroneous should have been charged criminally. The DA was clearly looking for something to pin on him, but they also clearly did not have anything.

Sadly this happens all the time in Yolo County, few have the resources to hire a Gonzalez-Leigh to defend them.

---Doug Paul Davis reporting

Rick Gore Appears in Court in Gang Injunction Challenge

On Tuesday, we learned in the local media that attorneys opposing the implementation of the second gang injunction including Mark Merin were seeking to call Senior Investigators for the Yolo County District Attorney's, Rick Gore as a material witness.

At issue is an affidavit signed by Rick Gore attesting to his support for the gang injunction.

In his letter to the District Attorney, Jeff Reisig on March 5, 2008, he argues that he no longer agrees with the current gang injunction nor does he think it is needed. However, he was compelled to sign "an affidavit in support of the injunction under penalty of perjury. I did not want to sign it as written since it was not prepared by me and I thought portions of my affidavit were untrue." He signed an affidavit of support for the second gang injunction that is currently in the process of being challenged.

He continues:

"I was called in by DDA Linden a few days later, and was told [Reisig] had ordered me to sign this injunction and I had no choice. Knowing I could be fired for not following this order, I signed it after changing some of the language."

The fact that Deputy District Attorney Linden was named in the letter forced him to disqualify himself from conducting the cross-examination of Rick Gore who was called by the defense as a hostile witness. This postponed the hearing until the afternoon when Deputy District Attorney Ann Hurd would be available.

Judge Kathleen White once again warned both sides that this was a hearing about law, she understands that there are outside politics in play on this issue, but she was only interested in Mr. Gore's testimony as far as the law went.

From our standpoint however, Mr. Gore got up and under oath and penalty of perjury he told the court yesterday that he was compelled to sign an affidavit that he did not believe. In other words, he confirmed under oath what he had said in that portion of the letter.

However, at the point in which he was directly questioned about the letter he sent off, he asked to consult his attorney and was granted a recess for him to make a call to his attorney who was not present. Upon return, he expressed a desire not to address the issue of the letter until court returns on April 8, 2008.

The attorney's for the defense and the District Attorney's office disagree over whether his expertise on the matter of the gang injunction is relevant. DDA Hurd argued that he was no longer working on the gang injunction and therefore he was not an expert on the matter. However, the defense argued that he only stopped working on the gang injunction a month prior to sending the letter and therefore he knew as much as anyone. This is a disputed issue that will be taken up on April 8, 2008.

It is interesting to note that there was a good deal of dispute between the two sides as to whether Rick Gore could even testify. It was pointed out by the defense that he was a listed witness for the people by virtue of the fact that his declaration was on file. And if they chose to pull his declaration, this could all end.

However, the District Attorney's office declined to do so. So Rick Gore was able to speak on the record.

The defense obviously sees Mr. Gore as a key material witness corroborating their claims that the gang injunction is not needed. But in terms of an overall impact on the case itself, the bigger intrigue was having Rick Gore basically confirm aspects of the letter under oath.

If we look at this objectively--when the letter came out, the District Attorney's office claimed that Rick Gore wrote his letter at the behest of Former Deputy District Attorney and Candidate for DA Pat Lenzi. Mr. Gore responded questioning why he would put his career in grave jeopardy for someone else's agenda. And we can now extend that further--why would he make claims under penalty of oath to help Pat Lenzi.

From that standpoint he testimony in court yesterday and any future testimony he offers flies in the face of that logic.

It seems to me however, that in terms of the impact on the gang injunction, this will be minimal unless at the April 8, 2008 hearing he offers very compelling evidence to suggest that the gang injunction is not needed.

Overall Rick Gore seemed to be an impressive and compelling witness. Perhaps a straight shooter to a fault. There was one exchange with Judge White right after he reported on his conversation with his attorney where the Judge was trying to clarify Mr. Gore's remarks, Mr. Gore said he did not say that, and the Judge laughed and commented on how straight he was shooting.

In terms of the overall gang injunction, while I see the approach the defense is trying to take, and from a political standpoint it may be a good approach. From a legal standpoint it would seem better to go after this case on constitutional grounds--the notion of due process of law still applies here. While it can be argued certainly that the District Attorney's office made a greater effort to notice the affected community than on the first gang injunction, it still seems rather lacking.

On this point, I think Gore's letter is actually far more compelling because it gives us insight into the motivation of Jeff Reisig to really stack the deck against those who would be impacted by the injunction and to prevent them from being able to challenge it.

The Vanguard will continue covering and following the injunction and future court appearances by Rick Gore very closely.

---Doug Paul Davis reporting

May Day Protesters Head to Court Requesting Government Open Records to Them

On May 1, 2007 hundreds of students, protesters, and food service workers marched from the Memorial Union on the campus of UC Davis, down Russell Blvd and stopping at the corner of Russell and Anderson/ La Rue. At which point 24 of them broke off from the main group and sat in the middle of the street. These students, workers, organizers, and a UC Davis lecturer were all arrested.

17 of the arrested protesters took DAP (diversion) and have had had their cases dispensed. However, the charges of failure to disperse have remained against seven who are still contesting the charges.

In January, attorneys for the protesters filed what is known as Murgia papers, asking the court to open up all the records of messages and communications between the University of California at Davis, UCD Police Department, Davis Police Department, and the Yolo County District Attorney.

According to a release:

"We believe this case may be part of a larger unconstitutional effort to silence the union and its supporters in this campaign."

Furthermore:

"Just as the 7 defendants continue to be prosecuted, Sodexho workers and their families continue to suffer from blatant inequality and discrimination in their contracted out jobs. UCD is still the only UC campus or medical center to deny food service workers direct UC employment and Union membership. The UCD administration has said that they will make an announcement in mid-April about their plan for contracted out food service workers."

Yesterday, the Vanguard sat in on a Murgia hearing. Unfortunately, the court has granted an extension to the end of April. Deputy District Attorney Rob Gorman is handling this case and was nearly a month late filing a response to the Murgia claim. Judge Steven Basha while not happy with either the late filing or the absence of Mr. Gorman agreed to allow it over requests by the defense it be disallowed.

The defense is claiming that these 24 people were being given disparate treatment based on their activities on behalf of the Sodexho workers. That similar protesters who have been arrested in Yolo County have not received the same sort of prosecution. And thus the Yolo County District Attorney's office is using this prosecution for improper political motivates to stop demonstration and action on behalf of the Sodexho Workers.

The defense, which consists of three lawyers representing different clients, with John Viola out of San Francisco representing five of them, is requesting three categories of records be opened up in this Murgia request.

First, they want to know the policy of law enforcement around crowd control and first amendment issues. Second, they want communications between the university and the prosecutors office on AFSCME and union activities--this would be akin to a public records request. Third, they want police reports that show disparate impact in this case from other cases, by looking at previous police reports where prosecutions did not occur.

Judge Basha has held over this hearing until April 30, 2008. He had shown a number of concerns with the defense claim that will need to be sorted out and address. It appears the biggest concerns are that they show that there has indeed been disparate treatment in the handling of this case over past cases. And second that the defense not make an overly broad and burdensome Murgia request.

Is the District Attorney's office in fact prosecuting this case more strongly than past incidents? That remains an open question and I agree one that the defense should be compelled to demonstrate at some point, however, as usual I tend to side with transparency and disclosure. Public records laws if they were strengthened could in fact cover most of what they are requesting here. It does not make a lot of sense that they would be denied these basic informational documents.

The Vanguard will continue to follow the legal proceedings as it has the overall case involving the Sodexho workers and their efforts at becoming full university employees.

---Doug Paul Davis reporting

West Sacramento Community Members Rally Against Gang Injunction

Yesterday afternoon at the courtyard in front of the Yolo County Courthouse in Woodland there was a rally of approximately 20 homeowners and community members from West Sacramento.

The defense was set to submit around 100 affidavits from various residents of West Sacramento that there is no need for the gang injunction. The District Attorney would counter that these affidavits have no bearing on the legal case.

The protesters were there to show their opposition to the police injunction that Yolo County District Attorney Jeff Reisig wants to impose upon the citizens of Broderick and Bryte. Community activists had gathered over 100 declarations from those areas that was due to be presented as part of their evidence for their hearing. They were hoping the injunction will not go further and that testimony from those individuals would allowed.

One of the organizers Julian Perez of the group Citizens Empowering Citizens told the crowd and gathered media:

"Now these gentlemen that have been placed in this action so far, they have their right to due process. However, the District Attorney has named up to four hundred John and Jane Doe's. Subsequent to this action if someone is placed on the gang injunction after it is imposed, they do not get a day in court."

Phil Barrows, retired law enforcement officer responded to a question from Davis Enterprise reporter Lauren Keene on the impact of the gang injunction on the community as a whole:

"Many of the family members, guys who are associated with people identified as gang members can't have their loved ones come over to the house because there may be one or two who are identified as gang members. Consequently if they're together, they violate the gang ordinance which then puts them in jeopardy of being arrested, which in fact they can be arrested at that time."

However, Mr. Barrows argued that the gang injunction really went beyond family impact to the impact on the community and the neighborhoods.

"The other type of impact on the community is what you see on the sign, gentrification. What's happening with West Sacramento, it's not only about a gang injunction. The way we see it, it's about development."

He goes on to argue that the gang injunction and fear of gang violence is used by some to seize land and declare eminent domain.

They have been fighting this gang injunction for three years.

"The reason we are fighting [the gang injunction] is that number one, the District Attorney came out and said that there was so much crime going on in West Sacramento and that because of the injunction that they have control of the crime. Crime was going down."

However as Mr. Barrows points out, crime had been going down three years ago nationally as well as locally. So it is not clear that the gang injunction was the cause of the decrease in crime in West Sacramento.

"In 2006, with this gang injunction still in place, crime went up in West Sacramento. Their not talking about that. What we've been telling them for days now is that the injunction will not have any effect on crime one way or another. It never has in all of the injunctions through out the state."

Mr. Barrows also addressed the issue of the 400 plus John and Jane Does.

"We don't know who those people are and neither does the District Attorney. For three years now they've only been able to serve 23 individuals. So that's a far cry from 400. Because there aren't 400."

One the issues that has been raised repeatedly by those against the gang injunction is that there is no Broderick Boys gang. Phil Barrows explained that at the rally yesterday.

"As a law enforcement officer, I'm hear to tell you that there isn't a Broderick Boys gang. That's not to say that there isn't gang members in West Sacramento, Woodland. The gang they're really looking at is the Norteno Gang, and now they're using the term Norteno. But there's never been a Broderick Boys Gang. That's what we're trying to prove, that there isn't, and because there isn't, and because this injunction has no effect on crime, then we don't need to have an injunction."

While the law is indeed independent of public opinion for the most part, it would be very interesting to get a true gauge of public opinion in West Sacramento about the gang injunction. Both sides assert that they have public support for their positions.

Many who oppose the gang injunction have argued in essence that the police have used it as a tool to harass Latinos in the area regardless of gang affiliation.

On the other hand, proponents have argued that the gang injunction is a valuable tool needed by law enforcement to counter gang activity.

Personally I have always been suspicious of measures that seek to prevent the normal activities that people are allowed to engage in without the due process of law.

The first gang injunction noticed one individual and at least according to Rick Gore, it was intentional by the District Attorney as a means to impose the gang injunction without the ability of those accused of gang members to challenge it.

This was a little better, but still you have 400 John and Jane Doe's who have no change to challenge the injunction once it gets implemented. Furthermore they are using civil law to deprive individuals of liberty.

From a constitutional and a civil liberty standpoint this is simply intolerable regardless of one's position of the merits of a gang injunction in general.

We understand that gang members do very bad things in a community and we wish to punish criminal activity, but we wish to do so within the confines of due process and actual proof in a court of law that individuals have engaged in unlawful gang activities.

---Doug Paul Davis reporting

News and Commentary: Major Hearing of the Gang Injunction Slated For Monday

In a press release issued on Friday, it was announced that on Monday in Woodland, lawyers representing defendants in the controversial West Sacramento "gang injunction" case will argue the court should not allow a Preliminary Injunction in the case as requested by the District Attorney.

A rally will occur among homeowners and community members from West Sacramento at the Yolo County Courthouse on Monday at 1 pm prior to a 1:30 PM hearing where the defense team will attempt to submit more than "100 affidavits from residents of West Sacramento claiming there is no need for the so-called "gang injunction," but the DA is arguing that residents should not be allowed to speak."

The defense will also question the veracity of statements issued by police officers.

"Residents of Broderick, many of them Latino, say the injunction is targeting innocent victims. They have outlined abuses by police, including charges that their families are photographed at picnics in the park, and that their children, while riding home on their bicycles, have been harassed by police."

This will be the first major hearing since a letter from a Senior Investigator from the District Attorney's Office disclosed that the District Attorney Jeff Reisig was dishonest with the court in the first go round of the Gang Injunction and its subsequent court challenges. He also admitted that he was pressured to sign an affidavit in support of the gang injunction this time round.

"As for the current and past Gang Injunction, when gathering intelligence, contacting active members and working with Detective Villanueva, I fully supported these efforts. However, after seeing this become your political benchmark, I have watched this injunction grow into something I did not want to be associated with or a part of, since I felt it had lost its original intent and purpose."

He admits efforts to mislead the appellate court with regard to initial efforts at noticing a single individual who was not high up in the Broderick Boys organization.

"I also feel you misled the appellate court when you argued, as an officer of the court, that serving only one person during the initial injunction was intended to result in the word getting out to the rest of the Broderick Boys. You and I know that the opposite was true and Wolfington was not high up in the organization and was not expected to pass the word to the others."

He also reveals reasons why they selected Mr. Wolfington to notice.

"I remember you telling me that you specifically selected Mr. Wolfington for being a less than “smart person”, you said he was “too stupid” to show up for court, he lived out of the area (in Sacramento) and he would likely not tell anyone."

Rick Gore no longer agrees with the current gang injunction nor does he think it is needed. However, "an affidavit in support of the injunction under penalty of perjury. I did not want to sign it as written since it was not prepared by me and I thought portions of my affidavit were untrue." He signed an affidavit of support for the second gang injunction that is currently in the process of being challenged.

He continues:

"I was called in by DDA Linden a few days later, and was told [Reisig] had ordered me to sign this injunction and I had no choice. Knowing I could be fired for not following this order, I signed it after changing some of the language."

Investigator Gore's acknowledgments call into question the veracity of the gang injunction.

Moreover, the District Attorney's office has always maintained that they have full backing of the public in West Sacramento. Recently those claims at the very least have to be called into question as hundreds of residents have put up signs and walked precincts against the gang injunction. From the start they have claimed that the police department has used the gang injunction to target and harass members of the Latino Community, most of whom have little to do with the Broderick Street Boys street gang.

The District Attorney and other supports have pointed to a fall in crime as a result of the gang injunction. Those are difficult claims to maintain at best, however, it would be interesting to see all evidence laid bare for the public to see. Is there evidence that suggests that the gang injunction works beyond anecdotal rhetoric? Is there evidence that the public in the Broderick Street area--non-gang members--support the gang injunction? Let us see that evidence. I do not mean to suggest that we law enforce by public opinion, however, I have simply grown weary of certain claims made by the District Attorney's office--I simply do not find them credible anymore.

---Doug Paul Davis reporting